) ) Shelley Nylander, Plaintiff/Moving Party – v. –, 2012 ONSC 6281

CITATION : Nylander v. Martin, 2012 ONSC 6281 COURT FILE NO.: 24727/09 DATE: 2012 11 05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Shelley Nylander, Plaintiff/Moving Party – and – Catherine Martin and James Martin, Defendants/Respondents ) ) ) ) ) ) ) ) )))) Libero C. Paci, Counsel, for Plaintiff/Moving Party Augusto Palombi, Counsel, for the Defendants/Respondents ) ) ) HEARD: November 1, 2012 Judgment on Motion for

Summary Judgment E.J. KOKE J. [ 1 ] The plaintiff, Shelley Nylander commenced an action for damages against the defendants, Catherine and James Martin. She submits that there is no genuine issue requiring a trial in the action and she brings this motion for

summary judgment. Background [ 2 ] The Martins were the vendors of a property located at 10 Holden Avenue, Sault Ste. Marie which they sold to Ms. Nylander. The Agreement of Purchase and Sale was dated October 11, 2008 and the sale was completed on December 5, 2008. [ 3 ] Prior to signing the Agreement of Purchase and Sale Ms. Nylander was provided with a Seller Property Information Statement (the “SPIS”) which had been signed by Mr.

Martin. [ 4 ] The SPIS is a three-page, pre-printed standard form document prepared by the Ontario Real Estate Association, the stated purpose of which is, in part, to protect sellers by establishing that correct information concerning the property is provided to prospective buyers. [ 5 ] The SPIS completed by Mr. Martin contains the following instructions at the top of the first page: • ANSWERS MUST BE COMPLETE AND ACCURATE This statement is designed in part to protect Sellers by establishing that correct information concerning the property is being provided to buyers.

All of the information contained herein is provided by the Sellers to the brokerage/broker/sales person. Any person who is in receipt of and utilizes this Statement acknowledges and agrees that the information is being provided for information purposes only and is not a warranty as to the matters recited hereinafter even if attached to an Agreement of Purchase and Sale.

The brokerage/broker/sales representative shall not be held responsible for the accuracy of any information contained herein. • BUYERS MUST STILL MAKE THEIR OWN ENQUIRIES Buyers must still make their own enquiries notwithstanding the information contained on this statement. Each question and answer must be considered and where necessary, keeping in mind that the Seller's knowledge of the property may be inaccurate or incomplete, additional information can be requested from the Sellers or from an independent source such as the municipality.

Buyers can hire an independent inspector to examine the property to determine whether defects exist and to provide an estimate of the cost of repairing problems that have been identified. This statement does not provide information on psychological stigmas that may be associated with a property. [Emphasis in original.] [ 6 ] It also contains the following statement near the bottom of the third page: The sellers state that the above information is true based on their current actual knowledge as of the date below.

Any important changes to this information known to the sellers will be disclosed by the sellers prior to closing. Sellers are responsible for the accuracy of all answers. Sellers further agree to indemnify and hold the brokerage/ broker/salesperson harmless from any liability incurred as a result of any buyer relying on this information.

The sellers hereby authorize the Brokerage to post a copy of this seller property information statement to the data base (data bases) of the appropriate MLS system and that a copy of this seller information statement be delivered by their agent or representative to prospective buyers or their agents or representatives. The sellers hereby acknowledge receipt of a true

copy of the statement. [ 7 ] In furtherance of its objective, the SPIS contains a series of questions for the sellers to answer in relation to the property being sold. The questions fall into three main categories - (1) general, (2) environmental, and (3) improvements and structural. [ 8 ] The following questions and the answers provided thereto by Mr. Martin are of significance and relevance in relation to this action and to this motion: Environmental Q. Is the property subject to flooding? A. No Improvements and Structural Q. Are you aware of any structural problems? A.

No Q Are you aware of any moisture and /or water problems? A. No [ 9 ] The purchase was completed on December 5, 2008. Ms. Nylander moved into the property. On December 27, 2008, she discovered a significant amount of water on the basement floor of her home. [ 10 ] Ms. Nylander retained the services of Wm. McClelland Contractors Ltd. (“McClelland), a contracting company which specializes in repairing and waterproofing leaky basements. McClelland inspected the property and Ms.

Nylander filed a report prepared by McClelland which confirmed that there was substantial evidence of prior leakage and water damage in the basement. [ 11 ] McClelland recommended that the north wall of the basement be rebuilt and that a waterproof membrane be applied around the exterior [ 12 ] Ms. Nylander also filed a report by M.R. Wright and Associates (“Wright”), a professional Engineering firm, which confirmed the existence of structural problems with the basement wall. Wright determined that the basement wall revealed severe horizontal cracking of the mortar beds on the north basement wall.

The cracks showed evidence of having been repaired. The wall bowed inward considerably along its length and there was a concern that the wall could collapse. [ 13 ] Wright noted that although the owner had installed eaves troughs all around the perimeter of the building the basement had continued to leak through the north wall. [ 14 ] Wright noted that an attempt had been made to waterproof the wall in the past by applying waterproofing over the failed masonry wall but suggested that the only correct method of repair was to replace the wall and then waterproof what would be a soundly built structure. [ 15 ] Ms.

Nylander also filed an estimate from Viotto and Sons Construction Inc. in the sum of $39,480.00 for the reconstruction and repair of the property as recommended by McClelland and Wood. [ 16 ] In their statement of defence, the Martins admit that Mr. Martin signed the SPIS. They submit that they purchased the property in August, 1994. In the spring of 1995 they experienced water problems in the basement of the home and as a result they retained the services of a construction company to remedy the problem.

They allege that thereafter they did not experience any water problems with the basement of the home. [ 17 ] The Martins retained Mr. Randy Beltramin of Stem Engineering to exam the property and prepare a report. [ 18 ] Mr. Beltramin’s explanation for the water leakage was that it resulted from climatic factors and negligence on the part of the home owner. He pointed out that temperatures and precipitation conditions went from one extreme to the other in December, 2008 and that there was a record amount of rainfall during that month. He had been advised by the Martins that they had observed that Ms.

Nylander had allowed snow to accumulate on the driveway and on the sidewalk adjacent to the north wall. It was his opinion that the build-up of the packed snow, together with the significant rainfall and corresponding snow melt in December, 2008 were not conditions that a normal basement wall would be expected to protect against and that these conditions likely contributed to the water penetrating into the block wall and seeping into the basement. [ 19 ] Mr. Beltramin concluded his report by providing a cost estimate for the waterproofing of the north basement wall, in the sum of $5,000.00 .

His estimate did not include the cost of rebuilding the wall. Position of the Plaintiff/Moving party [ 20 ] Ms. Nylander argues that once Mr. Martin decided to complete and sign the SPIS he was under an obligation to do so truthfully and completely. Furthermore, once Mr. Martin signed the SPIS, the Martins were no longer entitled to rely on the doctrine of caveat emptor.

[ 21 ] She argues that it was important to her that she not encounter any water issues with the home and that she relied on the contents of the SPIS in making her decision to purchase the Martin’s home. She argues that she is therefore entitled to the damages which flow directly from the untrue representations by the Vendor on the SPIS. [ 22 ] With respect to the motion for

summary judgment, she argues that the facts of this case are so obvious and compelling that a trial is not required for a judge to have a full appreciation of the evidence and of the issues. Position of the Defendant/Moving party [ 23 ] The Martins agree that they never had any conversations with Ms. Nylander about the home but they admit that Mr. Martin signed the SPIS. They argue that Ms. Nylander had an opportunity to have the home inspected by a professional home inspector. She chose not to but relied on her own inspection of the home in making her decision to submit an offer to purchase.

She should therefore bear the responsibility for any losses resulting from her failure to have the house inspected properly. [ 24 ] The Martins submit that the north basement wall had a noticeable bow in the wall when they purchased the home. This bow was not repaired by them. They argue that this was something clearly observable to the purchaser at the time she inspected the home. Ms. Nylander should therefore also bear the responsibility for any costs associated with having the wall repaired or replaced. [ 25 ] They also submit that the water problems experienced by Ms.

Nylander in December, 2008 were caused by a combination of the factors set out in Mr. Beltramin’s report, including heavy precipitation during that month and the failure of the plaintiff to remove the accumulated snow on the walkway adjacent to the north wall. [ 26 ] With respect to the motion for

summary judgment, the defendants submit that the circumstances of this case are such that the “full appreciation” test set out in Combined Air Mechanical Inc. v. William Flesh . [1] has not been met. According to the defendants, there are multiple findings of fact which are required to be made, for example:

a) Did the defendants repair the basement at the time they purchased the home;

b) Did the defendants have any leaking in the basement during the time that they owned the home;

c) Did the weather shortly after the purchase of the home by the plaintiff, the failure of the plaintiff to remove snow from around the house and the packing of the snow by construction vehicles cause the flooding to the home.

d) Is the cost of repairs the amount set out in the estimates provided by the plaintiff or the amount set out in the report of Randy Beltramin;

e) Is the cost of repairing the bow in the basement wall an appropriate remedy given the fact that the bow was there at the time the defendants purchased the home and visible to the plaintiff at the time she inspected the home;

f) Can the motion judge rely on the expert report submitted by the plaintiff given the fact that the author of the report has now been suspended from practicing as an engineer. Discussion: The Effect to be given to the SPIS General [ 27 ] The SPIS used in this case and documents similar to it are now in common use across Canada.

There is an increasing and evolving body of case law which has held that vendors are liable in damages to purchasers in circumstances where the purchasers have relied on such a document to their detriment. [ 28 ] In the province of Manitoba the SPIS is referred to as a Property Condition Statement (“PCS”) by the provincial real estate association. The effect which is to be given to such documents was discussed and summarized by the Manitoba Court of Appeal in the 2003 decision in Alevizos v.

Nirula [2] where Scott C.J.M. stated: While, as we have seen, the PCS is a relatively new phenomenon in Winnipeg, at least three provinces (British Columbia, Saskatchewan and Prince Edward Island) have utilized PCS's for some time. From a review of decisions from those jurisdictions, and the one reported Manitoba decision to date (of which more later), the following general statements can be made: 1. Declarations made in a PCS are representations as opposed to terms of the contract.

See Fridman's Law of Contract, ibid. (at p. 474): A representation has been defined as "a statement or assertion made by one party to the other before or at the time of the contract of some matter or circumstances relating to it." Such statements may indeed be, or become terms of the contract, in which event they will have effect as such. However, if a representation is not and never becomes a term, its legal character and consequences are different. Terms are contractual and the failure to fulfil the promise contained in a term gives rise to an action for breach of contract. Representations are non-contractual.

If they are not true the appropriate remedy is not an action for breach of contract, but the avoidance or rescission of a contract entered into in consequence of the representation, and, possibly, a tort action for damages. Damages are the remedy sought in this action.

2. Such statements do not constitute a warranty; rather the purpose of a PCS is to put purchasers on notice, to make purchasers aware of a problem if there is one. See Zaenker v. Kirk (1999), 30 R.P.R. (3d) 9 (B.C.S.C.) "its main purpose is to put purchasers on notice with respect to known problems" (at para. 19), Anderson v. Kibzey, [1996] B.C.J. No. 3008 (S.C.) at para. 13 , "the purpose of the disclosure statement is to raise questions and concerns rather than give detailed answers to the disclosures made," and Ward v. Smith (2001), 45 R.P.R. (3d) 154 , 2001 BCSC 1366 . 3.

Since the purpose of the PCS is to give the purchasers a "heads up" with respect to potential problems, liability will ordinarily be disallowed when the problem in question is obvious. See Davis v. Stinka, [1995] B.C.J. No. 1256 (S.C.) . This is because purchasers in such circumstances should not have been misled by the disclosure statement. To put it another way, in such circumstances it cannot be said that the misrepresentation actually caused the person to act upon it. See Fridman's Law of Contract, ibid. at p. 309. 4.

If the vendor answers the PCS honestly and does not deliberately intend to mislead, then liability will not follow even if the representation turns out to be inaccurate. Taschereau et al. v. Fuller et al. (2002), 165 Man.R. (2d) 202 , 2002 MBQB 183 . 5. Based on the experience of those provinces that have employed the PCS, it seems to present a ripe ground for litigation. Doubtless this is due in no small measure to the problems inherent in an informal "fill in the blank" form which can have such serious legal consequences when problems subsequently develop in a real estate transaction.

The wisdom of maintaining in use a form fraught with such inherent difficulties, exacerbated by the conflicting statements within the form concerning its purpose and effect, should be addressed by lawyers and real estate agents alike. Are the Questions on the Statement to be interpreted in the Present Tense, or is there an obligation to disclose prior property issues, notwithstanding the fact that these may have been Rectified? [ 29 ] The facts in the case of Usenik v. Sidorowicz and Ferland , a 2007 decision of J.

Wright J. of this court, involved water leakage in a recently purchased home and are very similar to the facts in the case at bar. In that case, the purchasers claimed that they relied to their detriment on a SPIS which appeared to be identical to the SPIS which was signed by Mr Martin in this case. The defendant vendors argued that the statements were true when made.

They claimed that while they had experienced difficulty with water in the basement in the past, they had experienced no such difficulty recently. [ 30 ] Wright J. held that the statements in the SPIS were false and that they were made negligently and awarded the plaintiff purchaser damages. Notwithstanding the fact that the vendors had not experienced any flooding or water damage in recent years, Wright J. found that they were aware that certain precautions had to be taken in order to prevent water entry into the home.

By completing the SPIC, the vendors placed themselves under a duty to elaborate on this matter and to divulge this information to the purchaser, and to explain to the purchaser what precautions could be taken to prevent water from entering the house. [ 31 ] In the case at bar the vendors admit that they were aware that precautions such as keeping snow away from the side of the house were necessary in order to prevent water leakage into the basement. Significantly, they did not notify the plaintiff that she should take such precautions. [ 32 ] In the case of Kaufmann v.

Gibson , 2007 [3] , a 2007 decision of Killeen J. of this court, the purchasers pleaded that they relied on the same provisions in the SPIS as those relied on by Ms. Nylander. The defendant vendors argued that they had experienced problems in the past, but not at the time they signed the SPIS. [ 33 ] In response to the argument that the words in the SPIS are to be understood in their present tense, Killeen J. stated at para. 98: 98. Notwithstanding Mr. Ledroit's argument to the contrary, I cannot see how a rational argument can be made for a "present- tense" or "current"

interpretation of questions 7 to 9 in the SPIS. [ 34 ] Based on the comments of Killeen J. and Smith J. in the above cases, it would appear that an arguable case can be made that Mr. Martin was under an obligation to provide the purchaser with some information concerning past issues he had experienced with water leaking into the basement. Does Caveat Emptor still apply ? [ 35 ] The defendants in the Kaufmann case also argued that they were entitled to rely on the fact that the plaintiffs had initially waived a home inspection, and that they were protected by the doctrine of Caveat Emptor.

Killeen J. responded to this argument at paragraphs 123 to 125 of the judgment where he stated: 123 I cannot accept Mr. Ledroit's submission that this waiver of the home inspection condition somehow means, at the same time, that

the purchasers waived their right to rely on the untrue answers in the SPIS form, as incorporated in the agreement. 124 It is a matter of obvious fact that home inspections may not discover things that are not visible to the naked eye and, in this home, the home inspection could not realistically discover what had happened in February and the repairs which had been done then.

In fact, the Hickman Mount repair work had covered up what had happened. 125 In short, there is simply no support for an argument that the limited waiver as to the home inspection should embrace the SPIS misrepresentations and eviscerate them. [ 36 ] In response to the defendant’s position that the doctrine of Caveat Emptor applied, Killeen J. stated at paragraph 119: 119. I agree with Mr.

Corbett's point that, once a vendor "breaks his silence" by signing the SPIS, the doctrine of caveat emptor falls away as a defence mechanism and the vendor must speak truthfully and completely about the matters raised in the unambiguous questions at issue here. In this case, the called-for truthful answers were an integral part of the contractual terms and the failure to provide truthful answers fully justified the defendants in refusing to close and asking for rescission of the agreement. [ 37 ] These comments by Killeen J. support Ms.

Nylander’s position that the defendants cannot escape liability because she did not choose to avail herself of a home inspection. [ 38 ] The argument that purchasers should have relied on their own inspection, rather than the information contained in an SPIS was discussed in the 2011Ontario Court of Appeal case of Krawchuk v. Scherbak [4] . Referring to the decision of Kurisko J. in McQueen v. Kelly [5] , Epstein J.A.stated: 86 . In McQueen v. Kelly (1999), 25 R.P.R. (3d) 248 (Ont.

S.C.) , Kurisko J. found that the purchasers of a house could recover against the vendors even though they had failed to adequately inspect the basement and, consequently, had missed patent defects that were concealed by the vendors. He held at paras. 63-64: 63. Ordinarily the [principle of] caveat emptor would have required the Plaintiffs to inspect the basement. If they had done so, the water stains in the Laundry Room would have been discovered.

However, I accept the Plaintiffs' explanation for not inspecting before and after signing the Agreement, namely, they relied on the Information Statement and oral assurances of Mr. Kelly [the vendor] there had never been any water problems in the basement. Do good intentions and good faith protect the Vendor? [ 39 ] The court in Krawchuk also held that good intentions on the part of the vendor were not enough. At par. 77 Epstein J.A. stated 77 . The Scherbaks submit that given the trial judge's finding of honest intentions on their part, it was an error in law for him to hold them liable to Ms.

Krawchuk for their statements. In support of this argument, the Scherbaks rely on the following statement in Alevizos v. Nirula , at para. 36 , adopted by Killeen J. in Kaufmann at para. 113: "If the vendor answers the PCS honestly and does not deliberately intend to mislead, then liability will not follow even if the representation turns out to be inaccurate." 79 For a number of reasons, I do not accept this submission. First, I note that the statement adopted by Killeen J. in Kaufmann is obiter since Alevizos is a case involving fraudulent misrepresentation.

Second, I do not interpret the statement as meaning that honest intentions, by themselves, are sufficient to avoid liability for inaccurate representations. Third, if that is what the court meant in Alevizos , I respectfully disagree. The standard of care extends beyond honest intentions. The obligation is to provide, to the extent possible, accurate and complete information. 80 In this case, the trial judge, correctly in my view, found liability notwithstanding his conclusion that the Scherbaks tried to be honest.

The key to the basis of the Scherbaks' liability is the trial judge's conclusion, set out at para. 39 above, that a reasonable person in similar circumstances would have disclosed more. [39] The law in Ontario appears to be that good intentions alone do not protect the vendor and that the standard of care extends beyond good intentions. There was a very heavy duty on the Martins to provide detailed and accurate information when Mr. Martin completed the SPIS Has the Plaintiff met the Full Appreciation test, as set out in Combined Air Mechanical Services Inc. v.

Flesch [ 40 ] In this case, the purchaser discovered that her basement leaked a mere 22 days after moving into her home. She states that in deciding to purchase the home she relied on the SPIS signed by the vendor. The vendors admit that there had been water leakage along the north basement wall in the past and they admit that they were aware that the wall was cracked and bowed but they did not disclose these facts to the purchaser, either in person or in the SPIS.

When I apply the dicta in the above referenced cases to the facts and circumstances of this case, I cannot help but find that the plaintiff has made out a strong prima facie case on the merits. Notwithstanding this finding, I am of the view that in order for the court to be in a position to fully appreciate the evidence and the issues and to make dispositive findings thereon in this case, a trial is necessary.

Although not exhaustive, in my view some of the more significant facts and issues which require a trial include the following: The extent of the water leakage problem [ 41 ] At paragraph 9 of her affidavit in support of the motion Ms. Nylander states that she went into the basement of her home on December 27, 2008 and discovered water leaking onto the basement floor, such that the whole basement floor was covered with water.

[ 42 ] Ms. Nylander does not indicate whether she has had problems with water on several occasions, on many occasions or whether there is a continuous problem with water leakage. This is significant, because in his report, Mr. Beltramin suggests the leakage resulted from the unique and unusual climatic conditions which occurred in December, 2008 and from the fact that Ms. Nylander had failed to remove snow which had accumulated on the sidewalk adjacent to the north wall of the home.

He suggests that the leakage is a one-time occurrence. [ 43 ] In order for the court to reach a decision in this case, it will be necessary for the court to determine whether the leakage which occurred in December, 2008 was an isolated incident or is a continuing problem. On the evidence before me, I cannot make this determination and it will therefore be necessary for the parties to lead viva voce evidence in relation thereto.

The degree to which the structural and water issues were visible upon inspection [ 44 ] Notwithstanding the comments concerning the application of the doctrine of caveat emptor in the cases referred to above, I am not prepared to find that a purchaser will always be permitted to rely blindly on such a document. In the Alevizos decision Chief Justice Scott of the Manitoba Court of Appeal stated at paragraph 36(3) : Since the purpose of the PCS is to give the purchasers a "heads up" with respect to potential problems, liability will ordinarily be disallowed when the problem in question is obvious. See Davis v.

Stinka, [1995] B.C.J. No. 1256 (S.C.) . This is because purchasers in such circumstances should not have been misled by the disclosure statement. To put it another way, in such circumstances it cannot be said that the misrepresentation actually caused the person to act upon it. See Fridman's Law of Contract, ibid. at p. 309. [ 45 ] The record before me is incomplete with respect to the extent to which the damage was, or could have been available on the inspection of the house which was undertaken by Ms. Nylander, and the degree to which it was reasonable for her to rely on the SPIS.

Vive voce evidence will therefore be required to assist in resolving this issue. Cause of Leaking [ 46 ] The plaintiff’s expert submits that the cause of the leaking is the poor structural condition of the north basement wall. The defendant argues that the leakage was caused by climatic and maintenance issues. [ 47 ] With respect to the experts and expert reports, the defendant submits that the plaintiff’s expert should not be relied on because he has recently been suspended from practice by his governing body.

I understand he was a member of the engineering profession in good standing at the time he undertook his inspection and so I would not be inclined to reject his evidence for this reason. However, I do believe that he should provide viva voce evidence and make himself available for cross-examination by the defendant. [ 48 ] With respect to Mr. Beltramin’s report, I note that he points out in his report that the plaintiff is not only expecting to be reimbursed for the cost of waterproofing the north basement wall, but also to have it reconstructed.

He then notes that the condition of this wall was evident to the purchaser when she inspected the house. He then declines to comment on whether the wall requires replacement and he only provides a cost estimate based on the cost of waterproofing (but not replacing) the wall. It is for the court, and not Mr. Beltramin, to determine what deficiencies were apparent to Ms. Nylander when she inspected the home, as well as the legal consequences which flow therefrom. Comments such as these suggest a bias on Mr.

Beltramin’s part and he too should be examined viva voce. [ 49 ] In conclusion, it is my view that it will be necessary to have viva voce evidence to determine the issue of the cause of the leaking, and the extent of repairs necessary. A review of the court file indicates that neither of the parties have filed a Form 53 (acknowledgement of experts duty), and this form should be completed and filed by both parties.

Decision [ 50 ] For the above reasons, the plaintiff’s motion is dismissed. [ 51 ] I note that this matter was originally placed on the December, 2009 assignment court list to set a trial date and it has still not been tried. It appears to me that this is an appropriate matter for the court to give directions and impose terms and accordingly I am ordering the following: 1. This matter is to be pre-tried again, before me, on an expedited basis, following a period of 60 days from the release of this decision. 2. It appears that some amendments to the pleadings are necessary.

I note that the defendants now admit that they did not have any direct communications with the vendor and their pleadings should be amended to reflect this fact. The plaintiff has not indicated in her statement of claim whether her claim is based on a fraudulent or negligent misrepresentation, or on some other basis. The parties are given an opportunity to amend their pleadings, provided they do so within 60 days of the release of this decision. 3.

In the event either of the parties wishes to obtain the assistance of other experts, reports from such experts should be exchanged and filed within 60 days, together with a Form 53. 4. If the parties deem it necessary to bring other motions for relief, they are to do so within 60 days. 5. The parties are to provide a statement setting out what material facts are not in dispute at the pre-trial. 6. The parties are to provide a witness list and a written

summary of the evidence which will be given by each of the witnesses, at the pre-trial.

7. The parties are to provide a concise statement of their opening statement at the pre-trial. 8. The parties are to be in a position to set a trial date, in conjunction with the trial co-ordinator and the pre-trial judge at thepre-trial. Motion for

Summary Judgment by Defendant, Catherine Martin [52] The defendant, Catherine Martin has filed a motion as well for

summary judgment, arguing that the claim should be dismissedagainst her because she did not sign the SPIS. [53] The defendants submit in their statement of defence that they communicated the 1995 incident with respect to water damage to theplaintiff prior to accepting the plaintiff’s offer to purchase. However, at the motion, counsel for the defendants advised that due to healthissues Ms. Martin was not in a position to communicate with the plaintiff at any time.

Given this submission by counsel, the Plaintiffconsented to a dismissal of the action against the defendant Catharine Martin, and an order should go accordingly. Costs [54] If the parties wish to make submissions with respect to costs, they should do so in writing within 14 days of the release of thisdecision. E.J. Koke J. Date: November 5, 2012 CITATION: Nylander v. Martin, 2012 ONSC 6281 COURT FILE NO.: 24727/09 DATE: 2012 11 05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Shelley Nylander, Plaintiff/Moving Party AND: Catherine Martin and James Martin,Defendants/Respondents Judgment on Motion E.J.

Koke Released: November 5, 2012 [1] Combined Air Mechanical Services Inc. v. Flesch 2010 ONSC 1729 , [2010] O.J. No. 1377